Schmitt v. Jenkins Truck Lines, Inc.

Decision Date05 September 1969
Docket NumberNo. 53082,53082
Citation46 A.L.R.3d 636,170 N.W.2d 632
PartiesMarcella K. SCHMITT and the Farmers National Bank of Webster City, Administrators of the Estates of Dorothy T. Schmitt and Theodore G. Schmitt, both Deceased, Appellees, v. JENKINS TRUCK LINES, INC., Violet H. Sorge, and Earlyn W. Quirren, Appellants.
CourtIowa Supreme Court

McCracken & Carlin, Davenport, and David R. Hardy, Lane D. Bauer and Robert K. Waldo of Shook, Hardy, Ottman, Mitchell & Bacon, of Kansas City, Mo., for appellant Jenkins Truck Lines, Inc.

McDonald & McDonald, Davenport, and Austin, Grefe & Sidney, Des Moines, for appellants Violet H. Sorge and Earlyn W. Quirren.

Frank C. Byrd, Memphis, Tenn., and Whitley M. Hemingway, Webster City, for appellees.

MASON, Justice.

This appeal involves two law actions tried jointly to a jury in which plaintiffs as administrators of the estates of Dorothy T. and her husband Theodore G. Schmitt sought damages for the death of their decedents.

Defendants are Jenkins Truck Lines, Inc., lessee of a tractor-trailer unit, Violet H. Sorge, owner and lessor thereof and Earlyn W. Quirren, operator of the unit.

January 15, 1965, about 6 a.m. Quirren was driving the tractor unit north on U.S. highway 69. Approximately 4 1/4 miles south of Blairsburg in Hamilton County a collision occurred between the unit and a southbound automobile being driven by Theodore G. Schmitt, in which his wife was a passenger. Decedents were killed outright as a result of the collision.

Basis of each action was Quirren's alleged negligence in operating the vehicle at a speed greater than was reasonable and proper under the existing conditions and failing to give half the traveled portion of the highway by turning to the right, keep a proper lookout and have his vehicle under control.

Defendants' motions for directed verdict and to withdraw all specifications of negligence made at the close of plaintiffs' evidence and renewed at the close of all evidence were overruled and the matter submitted to the jury on the four specifications of negligence. The jury returned verdicts against all defendants of $264,162.74 for Dorothy's estate and $302,577.94 for Theodore's.

Defendants jointly filed motions for judgments notwithstanding the verdict and for new trial. Both were overruled and all defendants appeal.

I. The principal questions presented by the appeal are rulings on (1) defendants' motions for directed verdict and to withdraw specifications of negligence, (2) admissibility of evidence, (3) objections to certain instructions and failure to give certain requested instructions and (4) defendant's motion for judgment notwithstanding on all grounds urged therein, including excessiveness of the verdicts.

Defendants assign 14 errors relief on for reversal argued in nine divisions of their brief. The first six assignments give rise to the first question stated above, insufficiency of evidence to justify submission of specifications of negligence. Four attack rulings on evidence, two the court's instructions. The remaining two involve the ruling on defendants' motion for new trial because of excessiveness of the verdicts.

II. Plaintiffs' evidence as to defendants' liability consisted of testimony of Merlin J. Hogan, a highway patrolman, E. H. Lear, Hamilton County sheriff, and a portion of defendant Quirren's pre-trial deposition offered by plaintiffs.

Under their first two assignments defendants maintain, in view of plaintiffs' offer of Quirren's deposition describing movements of both vehicles before impact, the evidence was insufficient to warrant submission of any of the four specifications or generate a jury question on the issue any were a proximate cause of the collision.

Defendants assert the offered portion of Quirren's deposition clearly established as a matter of law negligence of the operator of plaintiffs' vehicle was a or the sole proximate cause of the collision and a legal excuse for Quirren's position on the highway to the left of the center line at impact. They argue plaintiffs, having elected to introduce this deposition and failed to contradict it, are bound thereby even though it destroys the testimony of Patrolman Hogan and Sheriff Lear.

They further assert even though we find evidence supporting one or more, but not all, of the specifications it was reversible error for the court not to withdraw the unsupported specifications since there must be evidence to support every specification of negligence submitted.

III. Quirren had left Moline, Illinois the afternoon of January 14 after loading three tractors weighing approximately 31,000 pounds to be delivered in Spirit River, Alberta. The Mack truck and trailer with an overall length of 54 9 and width of 8 weighed 27,000 without load. After stopping to visit his sister in Tiffin, Iowa and taking a four-hour nap, Quirren left there about 1 a.m. He stopped to check his load about 5:45 after crossing the railroad tracks in Jewell, about six miles south of the accident scene.

In that portion of his deposition offered by plaintiffs Quirren described the events leading up to the impact.

After the stop in Jewell he proceeded north at a speed not over 50 m.p.h. The road was dry and he estimated he could stop the loaded unit in less than the length of a football field, something like 300 feet. It was just near zero and visibility very good although not yet light. North of Jewell, the highway was vacant with the exception of one northbound truck which passed him shortly before the collision. Quirren observed this truck meet what was later learned to be the Schmitt car a half mile to a mile away. After passing the oncoming truck the Schmitt car came to Quirren's side of the road then back to Schmitt's own side when approximately a half mile away. Quirren speculated the driver was lighting a cigarette or something and paid little attention at the instance. About a quarter mile away the driver of the Schmitt vehicle came back again to Quirren's side of the road, perhaps not as far as the first time. Quirren blinked his lights during this second swerve of the Schmitt vehicle, held tight to his right-hand side of the road and then the Schmitt car returned to its side.

When approximately an eighth mile away the Schmitt car started a third gradual swerve into Quirren's lane. Quirren said as they closed on each other it looked very evident the Schmitt car had to go to Quirren's right in order to pass. In fact it looked like he was headed for the east ditch. About this point Quirren moved his unit so he had one set of wheels to the left of the center line. This was the end of his evasive action except to lift his foot from the accelerator about the time the Schmitt car started the third swerve. When they were less than 200 feet apart Quirren maintained his position with one set of wheels to the left of the center line. The Schmitt car swerved back to its right side of the road directly under him as they collided. He maintained he didn't have any indication until the last 20 seconds they were in trouble.

Quirren placed the Schmitt car at the point of impact with its two left wheels to the left of the center line, west of Quirren's right front wheels. As he recalled there was practically no ditch on either side though there were some trees along the roadside.

IV. As a defense to the division based on Dorothy's death each defendant alleged generally in somewhat similar language that her negligence was a proximate cause of her death. In answer to the division seeking recovery for Theodore's death Jenkins made a similar allegation that the former's negligence was a proximate cause of his death. Plaintiffs did not attack these pleadings by motion for more specific statement.

A pleading containing a general averment of negligence states a good cause of action or defense, and, if unassailed by motion asking that the pleader more specifically state the allegations of negligence therein, the pleader would be entitled to introduce such evidence of specific acts of negligence as might tend to establish his cause or defense. Gebhardt v. McQuillen, 230 Iowa 181, 185, 297 N.W. 301, 303. See also Cavanaugh v. Jepson, filed May 6, 1969, Iowa, 167 N.W.2d 616, where after stating the same proposition in other words and citing several of our earlier opinions, we continued by saying, 'When the Pleading raises only the general issue of negligence, the trial court may, * * *, submit for jury consideration those specific acts of which the party could be found negligent under the Evidence.'

In answer to the division based on Theodore's death Sorge and Quirren stated specifically the manner in which Theodore was allegedly negligent. Sorge asserted Theodore's negligence in the respects alleged was the proximate cause of the collision and his death. Although Quirren alleged specific acts of negligence he did not assert they were either a proximate cause or contributing cause to Theodore's death or the collision.

Trial commenced September 12, 1967. Under these circumstances, if defendants relied on Dorothy's negligence as a complete defense or bar to recovery by her estate they had the burden to plead and prove such negligence contributed in any way or any degree directly to her injury or damage. Section 619.17, Code, 1966, as amended by Chapter 430, section 1, Acts of the Sixty-first General Assembly, effective July 4, 1965.

In Schultz v. Gosselink, 263 Iowa 115, 121, 148 N.W.2d 434, 437--438, we said:

'* * * (A)s to actions brought involving an accident which occurred prior to July 4, 1965, but trial commenced thereafter the burden is on defendant to plead and prove plaintiff's negligence contributed in any way or any degree directly to the injury or damage. However, in actions brought involving accidents which occurred on or subsequent to July 4, 1965, the defendant, if he relies upon the negligence of plaintiff as a complete defense or bar to plaintiff's recovery, has the burden...

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